A flash' of insight on just how free is our free speech

If you associate the First Amendment more with the rarified air of constitutional debate, or powdered wigs and colonial days, try thinking in more modern terms — say speed traps and blinking headlights.

For most of us, much of the Bill of Rights comes into play infrequently, if ever. A few examples: According to a 2013 survey, only one in three U.S. households are home to a firearm (Second Amendment). And thankfully, protection in our lifetimes against illegal search and seizure (Fourth) or self-incrimination (Fifth) will be more legal theory rather than active tool.

But the First Amendment — the nation’s “blue collar” amendment — goes to work every day alongside us. We regularly, if not daily, use the freedoms of religion, speech, press, assembly and petition to worship as we will, to speak our minds freely, and to ask our elected leaders to make changes on matters of public interest.

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There are disputes over the way we apply those core freedoms, sometimes reaching the U.S. Supreme Court. But at other times, the legal collision and decision are more down-to-earth and closer to home. Case in point, Michael J. Elli challenged a city ordinance in his hometown, Ellisville, Mo., that permitted police to ticket drivers who flashed headlights to warn oncoming motorists approaching a speed trap.

About 2:50 p.m. on Nov. 17, 2012, Elli flashed his headlights after passing police. He was stopped and ticketed. Elli faced a $1,000 fine, and later was warned by a municipal judge about a charge of “obstruction of justice.”

The city dropped the prosecution after Elli pled not guilty, and later said it ordered police not to enforce the law. Nonetheless, Elli proceeded with a federal lawsuit. In early February, U.S. District Judge Henry Autrey issued an order to make certain he stopped the “chilling effect” on citizens exercising their First Amendment right of free speech.

Judge Henry’s ruling makes the important point that Missouri law forbids someone from warning of “impending discovery or apprehension,” but specifically excludes telling someone to comply with the law. In other words, communicating “slow down” is protected speech because it encourages safer driving.

An attorney for Elli from the American Civil Liberties Union, Tony Rothert, told The Wall Street Journal’s Law Blog that there was a higher principle involved, too: With rare exception, the police shouldn’t be stopping or prosecuting people because of the content of their speech.

As it happens, along with headlight warnings, other courts have protected a range of “speech,” from the spoken word to expressive conduct, where government may not prosecute.

While it may be rude to do so, and may well mean a risk of arrest before later exoneration, courts have said people can confront police officers using insulting words, hand and finger gestures to a degree more than they could similarly challenge other “civilians.” In City of Houston v. Hill, in 1999, the U.S. Supreme Court noted “a properly trained officer may reasonably be expected to exercise a greater degree of restraint than the average citizen” to such expressive conduct.

The point is not that courts are encouraging us to be insulting or disrespectful to police or other authorities — rather that government, from the lowest to highest official in the land, cannot override our right to speak freely without presenting good reason rooted in law.

In Houston, Justice William J. Brennan wrote that “the right of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. ... The First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”

We traditionally celebrate freedom with fireworks on July 4, Independence Day. Maybe an occasional flick or two of the high-beams is in order, too.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.